Summary of the Turów case

Chronology

  • 6 June 2022 Polish Minister of Climate and Environment dismisses proceedings for license until 2044, thus Turów Mine operates only on license until 2026 without EIA decision
  • 28 April 2022 Polish Minister of Climate and Environment refused participation of the Greenpeace CZ in proceedings regarding the license until 2026, thus breaching the CZ-PL agreement
  • 12 April 2022 Czech Ministry of Environment refused to release information concerning groundwater barrier, mine water withdrawals and inflow of water into the mine, thus preventing local people from benefiting from the CZ-PL agreement 
  • 4 February 2022 Czech Republic withdrew the case against Poland regarding mining in Turów from the CJEU
  • 3 February 2022 Czech-Polish Agreement concluded
  • 3 February 2022 General Advocate published his opinion on Turów case (C-121/21), stating that Poland violates EU law
  • 1 February 2022 Polish court revoked the direct enforceability clause of the EIA decision, rendering the current permit (prolongation from 2020 to 2026 and 2044) not valid
  • July 2021 Legislative changes in Polish law – license for 6 years needs EIA decision
  • 17 December 2020 Reasoned Opinion of the EC, stating that Poland violates EU law
  • 30 April 2020 End of the last valid license for the mining in Turów (license from 1994), starting the period of illegal mining lasting until now

Mining in Turów in breach of EU law:

EIA Directive (2011/92/EU)

Turów Mine operates with an EIA decision that is not valid:

It is based on an old, not valid, hydrogeological model:

    • The model counts with a groundwater decline of 3 - 15 meters in total in 2044, but in 2021 the groundwater already declined more than 8 - 34 meters,

    • Old runoff conditions - water from the Czech territory began in 2017 to flow predominantly through another channel (changes in pressure conditions in water layers) – so it is impossible to determine specific parameters of the protective measures that need to be taken to prevent damage without an updated model.

Turów Mine operates without a final EIA decision:

EIA decision is not final and is not in force, because its legal force was annulled by Polish courts (on 1 February 2022). A valid EIA decision is necessary for mining according to Art. 4 of the EIA directive.

Access to review procedure under Article 11 of the EIA Directive:

NGOs, such as Greenpeace Czech Republic, have been declined participation in the proceedings for a mining license until 2026 and thus have no standing to initiate a judicial review of this license, even though this right is accorded to the by Art. 11 of the EIA directive.

ELD Directive (2004/35/CE)

  • The Turów mining and water abstraction result in environmental damage, in the form of constant decrease of groundwater levels, caused by water abstraction and impoundment of water

  • MS need to take the necessary preventive measures and where environmental damage has occurred the operator shall, without delay, take all necessary remedial measures. To this end, affected MS need to cooperate.

  • Construction of an underground barrier cannot be considered a preventive measure according to the ELD, as there is evidence that it does not prevent the damage from occurring. It is originally built to prevent flooding of the mine, not to prevent the Czech groundwaters from disappearing.

Access to Environmental Information Directive (2003/4/EC)

  • Members of the public did not have access to information about environmental impacts of the mine, which violates Art. 7 of the directive.

  • This violation was also identified by the General Advocate in his opinion and is further continued by the actions of the Czech and Polish authorities which refuse to disclose information regarding the environmental information based on the CZ-PL Agreement.

  • This violation continues with the Czech-Polish Agreement. The public has been denied an access to environmental information based on art. 14 para. 9 of the CZ-PL Agreement.

Czech-Polish Agreement

The CZ-PL Agreement does not remedy the above-mentioned violations of EU law. To the contrary, the Agreement leads to further maintaining of the illegal status quo, for the following reasons:

1. No preventive measures against environmental damage (water disappearance)

a. objections against the underground barrier
- definition of its functionality
- time management 

b. objections against monitoring system of the groundwater levels
- important are only 4 monitoring boreholes in the middle tertiary close to the barrier

c. objections against obligations of the PGE and Polish party
- how much water can disappear - 8 m in 6 months

2. No remedial measures for environmental damage already caused

3. Prohibition to bring an infringement procedure under 259 of the Treaty of Functioning of the EU concerning the Turów mine by the Czech Republic against Poland

4. Prohibition to publish environmental information under art. 14 para. 9 of the Agreement with public – access to information regarding groundwaters has already been denied

Legal proceedings

Polish proceedings

1. EIA decision from 21st January 2020

a. Challenged by NGOs for not using an adequate hydrogeological model
b. Decision currently not binding and not final
c. Expected administrative appeal decision on the merits – August 2022.
d. Expected Supreme Administrative Court decision on immediate enforceability clause – during 2022.

2. Prolongation of the concession for the mining until 2026

a. Final and binding
b. Without a valid EIA decision
c. Since there was no possibility to participate in the proceedings, a few NGOs - including Frank Bold, have taken legal action to enter the now-closed mining proceedings, which will open the way for the court to consider complaints against the decision.
d. Expected court decision on NGO participation – during 2022.

3. Prolongation of the concession for the mining until 2044

a. Not final, not binding – proceedings was suspended (06 June 2022) by the Minister of Climate and Environment due to the annulment of the order of immediate enforceability of the environmental decision (EIA) by the court. The authorities will now wait for the EIA decision to be finalised.

EU level proceedings

  1. Complaint by Saxony (X Poland) – pending since January 2021, should be supplemented with new facts in autumn 2022

  2. Complaint by the Liberec region (X Poland) – pending since December 2019

Czech proceedings

  1. Constitutional complaint - submitted on 4 April 2022 by the local people and NGO against the CZ-PL deal (No. Pl. ÚS 9/22)

  2. Access to information on groundwater outflow, administrative lawsuit - currently pending administrative appeal

Contact

Petra Kalenská

Lawyer and Project Manager of the Turów case